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District Court 7 August 2019

R v Turner

[2019] NSWDC 618

Fraud & dishonesty
CRIMINAL SENTENCE IMPORTANCE OF GENERAL DETERRENCE ASSISTANCE

Citation: R v Turner [2019] NSWDC 618
Court: District Court of NSW
Date: 7 August 2019
Judge: Bright DCJ

Background

The offender, a 29-year-old woman, met the victim through a Facebook buy-and-sell group in 2015 after he responded to her advertisement for children's clothing and toys. The victim, who owned and managed an accountancy practice on the Central Coast, donated items to the offender and subsequently provided her with small sums of money. Over the following months, the two exchanged messages and sexually explicit photographs.

In July 2016, the offender launched what became a sustained campaign of extortion. She threatened to accuse the victim of rape and to destroy his business unless he paid her large sums of money. The victim, fearing reputational and professional ruin, complied with a series of demands made by the offender and her partner, a co-offender.

Over several months in 2016, the victim transferred substantial amounts of money to the offender and her partner. The total extracted across the offending period ran into hundreds of thousands of dollars. The offender pleaded guilty on 5 March 2019 at Wyong Local Court.

  • What was the appropriate sentence for eight substantive offences of demand with menaces under the Crimes Act 1900, including one offence under s 249K(2) (demand with menaces by accusation that a person has committed a serious indictable offence) and seven offences under s 249K(1)(a) (demand with menaces intending to obtain a gain or cause a loss)?
  • What discount was warranted for the guilty plea, having regard to its timing?
  • Whether special circumstances existed justifying a variation to the standard statutory ratio between the non-parole period and the parole period under s 44(2B) of the Crimes (Sentencing Procedure) Act 1999.
  • Whether any sentence other than full-time imprisonment was appropriate.

Decision

Bright DCJ found that the objective criminality was very serious. The offending involved a calculated and prolonged scheme of extortion, exploiting a false threat of rape allegations to extract large sums of money from a victim who suffered significant personal harm, including an inability to eat or sleep. The judge had regard to the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999, with general deterrence identified as an important consideration.

The court assessed indicative sentences for each offence separately before arriving at an aggregate term. For the principal offence under s 249K(2), which carries a maximum of 14 years imprisonment, the starting point was 7 years, reduced by 40% for the guilty plea to 4 years and 2 months. The seven substantive offences under s 249K(1)(a) attracted starting points of between 3 and 4 years each, similarly discounted. A further seven offences were taken into account on a Form 1 (a procedural mechanism that allows a court to take additional, uncharged or unsentenced offences into account without imposing a separate penalty for each).

The court applied a 25% discount for the guilty plea overall, noting the timing of the plea at the Local Court stage. Although a 40% discount was applied when calculating the indicative individual sentences, the judgment records the formally applied global discount as 25%. The court was satisfied that no penalty other than full-time imprisonment was appropriate, noting that even if the aggregate sentence had been below three years, the seriousness of the objective criminality would have precluded an intensive corrections order.

Special circumstances were found to exist, justifying a variation to the usual ratio between the non-parole period and the balance of the sentence under s 44(2B) of the Crimes (Sentencing Procedure) Act 1999. This resulted in a longer parole period than the statutory default to assist with the offender's rehabilitation and reintegration.

Orders Made

  • The offender was convicted of each offence.
  • An aggregate sentence of 10 years imprisonment was imposed, commencing 7 August 2019 and expiring 6 August 2029.
  • A non-parole period of 6 years and 6 months was set, commencing 7 August 2019 and expiring 6 February 2026.
  • The earliest date of parole eligibility is 6 February 2026.
  • Special circumstances were found and the statutory ratio between the non-parole period and the parole period was varied pursuant to s 44(2B) of the Crimes (Sentencing Procedure) Act 1999.

Key Takeaways

  • The District Court confirmed that offences involving threats to make false allegations of serious criminal conduct, deployed as leverage to extract large sums of money over an extended period, will attract substantial custodial terms and significant weight given to general deterrence.
  • A guilty plea entered at the Local Court stage attracted a 25% discount on sentence, reflecting the timing as a relevant factor in quantifying the utilitarian benefit of the plea.
  • Where the aggregate sentence exceeds three years, an intensive corrections order is not available as a sentencing option under the Crimes (Sentencing Procedure) Act 1999; the District Court noted that, in any event, the gravity of this offending would have made full-time imprisonment the only appropriate outcome.
  • Form 1 offences, though not separately punished, were taken into account in assessing the overall sentence for the principal offence, reflecting the full scope of the offending course of conduct.
  • Special circumstances can justify extending the parole period beyond the statutory default, providing a longer period of supervision to support rehabilitation following release.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 249K(1)(a), 249K(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5(1), 44(2B), 53A

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Attorney General's Reference No 40 of 2002 (John Alexander Collard) [2003] 1 Cr App R 98
- Bugmy v The Queen [2013] HCA 37
- Cahyadi v R [2007] NSWCCA 1
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- Imbornone v R [2017] NSWCCA 144
- R v Barroso [1998] VSC 249
- R v Hadjou (1989) 11 Cr App R (S) 29
- The Queen v Son Vo [1998] VSC 319